Akers v. Serv-A-Portion, Inc.
| Decision Date | 17 June 1987 |
| Docket Number | INC,SERV-A-PORTIO,No. 86-900,86-900 |
| Citation | 31 OBR 190,508 N.E.2d 964,31 Ohio St.3d 78 |
| Parties | , 31 O.B.R. 190 AKERS, Appellee, v.; Connor, Admr., Bureau of Workers' Compensation, Appellant. |
| Court | Ohio Supreme Court |
Syllabus by the Court
The stenographic and reproduction costs of depositions are to be paid from the Industrial Commission surplus fund under the "cost of the deposition" provision of R.C. 4123.519 whether or not the claimant successfully establishes a right to participate under the Workers' Compensation Act.
Appellee, Maxine Akers, appealed to the court of appeals from a judgment of the court of common pleas overruling her Civ.R. 60(B) motion for relief from judgment. The appellate court reversed the judgment of the trial court.
Appellee sought to participate in the Workers' Compensation Fund due to injuries allegedly arising from her employment with Serv-A-Portion, Inc. Her application was denied on all three administrative levels. Appellee then sought review of the Industrial Commission's order by the Franklin County Court of Common Pleas pursuant to the provisions of R.C. 4123.519. The cause was tried to a jury which returned a verdict finding that appellee was not entitled to participate under the Workers' Compensation Act.
A proposed judgment entry was submitted by appellee to the court which assessed court costs to her, but excluded the costs of a deposition which were to be paid from the Industrial Commission surplus fund. The common pleas court, however, assessed all costs, including the deposition costs, to appellee. Appellee filed a motion for relief from judgment pursuant to Civ.R. 60(B). This motion was overruled by the trial court.
Appellee appealed to the court of appeals, alleging as error the denial of her statutory right to have deposition costs for trial charged to the surplus fund pursuant to R.C. 4123.519. The appellate court sustained appellee's assignment of error and held that its decision in Thomas v. Buckeye Internatl., Inc. (Jan. 17, 1985), Franklin App. No. 84AP-51, unreported, was dispositive of the appeal.
The court of appeals, finding its judgment to be in conflict with that of the Court of Appeals for Lucas County in Green v. Toledo (Feb. 7, 1986), Lucas App. No. L-85-104, unreported, certified the record of the case to this court for review and final determination.
Michael J. Muldoon, Columbus, for appellee.
Anthony J. Celebrezze, Jr., Atty. Gen., Janet E. Jackson and Gerald H. Waterman, Columbus, for appellant.
The sole issue on certification is whether R.C. 4123.519 mandates that the Industrial Commission pay from the surplus fund the stenographic and copying costs of a deposition where the claimant's right to participate in the Workers' Compensation Fund is finally denied. We hold that R.C. 4123.519 does require payment of these costs under these circumstances and affirm the judgment of the court of appeals.
The pertinent provision of R.C. 4123.519 states at paragraph six:
" * * * Any party may file with the clerk prior to the trial of the action a deposition of any physician taken in accordance with the provisions of the Revised Code, which deposition may be read in the trial of the action even though such physician is a resident of or subject to service in the county in which the trial is had. The cost of the deposition filed in court and of copies of such deposition for each party shall be paid for by the industrial commission from the surplus fund and costs thereof charged against the unsuccessful party if the claimant's right to participate or continue to participate is finally sustained or established in such appeal. In the event such a deposition is taken and filed, the physician whose deposition is taken shall not be required to respond to any subpoena issued in the trial of the action. * * * " 1 (Emphasis added.)
We believe the express language in paragraph six of R.C. 4123.519 makes clear that the deposition costs are to be paid from the surplus fund, whether or not the claimant successfully establishes a right to participate under the Workers' Compensation Act. The phrase "[t]he cost of the deposition filed in court and of copies of such deposition for each party shall be paid for by the industrial commission from the surplus fund * * * " is mandatory. That is, in all cases the costs of the deposition are to be paid from the surplus fund. The remainder of the sentence, "and costs thereof...
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